You are reading this because it is possible or even likely you are about to confront the dissolving of your marriage. You are reading this article with a feeling of deep concern but realizing that as unpleasant as facing this process may be, you have to educate yourself as to what you are facing and what must be done. You are right.
Divorce is often the most trying time in one’s life. It will undoubtedly take an emotional toll on the family which has to consider issues such as custody of children and division of assets. It is a stressful time and understanding what to expect will help you through the process.
And you have plenty of company. Statistics show that over sixty percent of marriages in California end in divorce. What used to be an event viewed by society with shock is now sufficiently commonplace to be taken in stride by most of the people you know and, while upsetting, is no longer a disgrace. Most of the people who hear of your divorce will be divorced themselves, already.
It is vital to avoid reliance on the myths that surround divorce or to think that the often bitter complaints that one hears from couples going through the process or you hear from a friend over a drink necessarily accurately predict what will happen to you. You do not have to believe that a divorce must necessarily lead to vicious fighting or destroyed relationships. Especially when there are children of the divorcing couple, it is important to attempt to create a relationship with the ex spouse that will not injure the children and will allow them to prosper.
That said, while you should not begin a fight unless you must, if you are forced to fight you must utilize all the tools at your disposal to protect the children and your assets so that a fair resolution is achieved. As Shakespeare wrote, “Beware of entering a fight, but if you do enter it, make the other side beware of you.”
Having a team of advisors in place is important to guide you to a fair and beneficial resolution and that means more than just good legal advice. You will need good tax advice, perhaps some family counseling, and advice as to how to minimize the negative effect on the children. Above all, you need support from friends and family as you walk this path, knowing that some friends and family will feel uncomfortable having to “chose sides” and that such disruption is just part of the process you will have to endure.
There are methods to minimize the harm and the hurt, but before discussing same, let us discuss the basics of the law of dissolution in California.
THE BASIC LAW:
Each state has its own law that applies to dissolution of marriage and relating to the property owned by the couple during the marriage.
California courts have developed specific requirements and expectations relating to child custody, child support, spousal support, asset valuation, and distribution of marital property.
GROUNDS FOR DISSOLUTION
Under Family Code Section 2310, a judgment of dissolution of marriage or of legal separation may be granted only on the grounds of (1) irreconcilable differences that have caused the irremediable breakdown of the marriage, or (2) incurable insanity.
“Irreconcilable differences” are alleged as the grounds in almost every petition for dissolution or separation, and in practice this means the court finding substantial reasons for not continuing the marriage. Virtually every petition for dissolution of marriage meets the definition in California. This has been termed “no fault” divorce and essentially means that any person who wishes to dissolve the marriage may do so. Contesting dissolution is no longer a realistic option in California.
In order for the court to have jurisdiction over the parties and enter a judgment of dissolution, at least one party must be (a) a resident of California for at least 6 months and (b) a resident of the county in which the petition is filed for at least 3 months prior to the filing of the petition.
Under Family Code Section 2320, there is a 6 month statutory waiting period between filing of the petition and entry of judgment of dissolution. There is no waiting period for a legal separation. In order for the dissolution judgment to be entered, one party must have defaulted by not appearing for any proceedings, both parties must consent to it, or the judgment must be entered after a trial. Once a dissolution is entered, the parties are legally divorced and free to marry again.
PETITION FOR DISSOLUTION OF MARRIAGE
The first step in getting a divorce is filing the petition for dissolution of marriage. After the petition for dissolution of marriage is filed and served, the attorneys begin the process of disclosing assets and negotiating division of same, calculating spousal support and child support, and negotiating child custody arrangements. Each of these tasks can be fairly short or painfully lengthy, depending on the size of the marital estate and the emotions of the parties involved. The demeanor of the parties’ respective lawyers can have a substantial impact on the length and cost of the dissolution process as well.
In some divorce proceedings, summary dissolution is available in accordance with Family Code Section 2400-2406, which brings about speedy and efficient resolution. However, all of the requirements of these statutes must be met, including but not limited to, a marriage of not more than five years, no children, community assets of less than $33,000, neither party having separate property of more than $33,000, a written agreement as to division of community property, and a waiver of any spousal support. A serious downside to summary proceedings is the right of either party to revoke the summary dissolution at any time during the process, which brings the matter back to standard dissolution proceedings.
Mediation is a non-binding process involving a neutral third party who attempts to facilitate settlement negotiations between the disputing parties (See our article on Mediation). The mediator attempts to help the parties evaluate their respective positions objectively so they can better evaluate a potential settlement agreement. The mediator typically meets with the parties separately, and cannot disclose any discussions with one party to the other unless authorized to do so by the disclosing party. The mediator is usually neutral in tone while helping the parties recognize the reality of their respective positions without passing judgment or expressing ultimate opinions of the merits of such positions.
Many courts require mandatory mediation for the parties during the divorce process and the timing of such differs from court to court. In fact, mediation is required for all contested custody and visitation disputes. Additionally, many couples elect mediation on a voluntary basis and only resort to the courts to divide assets if the mediation does not bear fruit.
Where the parties are successful in reaching a settlement agreement, the terms are often drafted into a settlement agreement on the spot, with the parties signing right then and there. It is possible to have a settlement agreements hand written by counsel on lined yellow legal paper with a clause that a more detailed agreement will be typed and signed by the parties within a few days. Where mediation is successful, it saves the parties money in attorney’s fees and court costs as well as the ongoing emotional toll divorce proceedings inflict on both parties. The parties that are able to reach an agreement through mediation are often the ones that manage to remain civil with each other after the divorce process is over.
Once the petition for marital dissolution in filed, the discovery process begins shortly thereafter. This includes the exchange of written requests for information and documents regarding each party’s assets and standard of living, inquiries into what is, “in the best interest of the children” with respect to custody and visitation rights, and other relevant matters. The discovery process also includes oral questioning under oath regarding same (See our article on American Litigation). This process can be lengthy and costly, and, especially in family law cases, emotionally challenging.
DIVISION OF ASSETS
Under Family Code Section 2550, the court must divide the community estate equally, except as the parties may otherwise agree. The parties may not agree and often there is a costly fight over what is community property, what is separate property, and what the value of such property is.
In standard dissolution proceedings, both parties must disclose under oath all assets, and the court must determine what assets of the parties are community property and hence shall be divided equally, and what assets are separate property of a party, to be retained entirely by that party. The court must determine whether debts are community or separate as well, and allocate same accordingly.
The main factors in determining whether property is community or separate are (a) the time of acquisition (pre or post marriage) and (b) the manner of acquisition (with community funds or separate funds). (Giacomazzi v. Rowe (1952) 109 C.A.2d 498). Under Family Code Section 760, property acquired during marriage and before separation is presumed to be community property. For example, property, cash or otherwise, earned by a spouse through his or her occupation during the marriage is community property. On the other hand, if one party solely inherits property from family, it is the separate property of that party.
However, there are many circumstances where community and separate property may be commingled, creating the need for fact investigation and, often, a fight as to what is what. For example, where the mortgage on a spouse’s separate real property is paid for with community property funds (e.g., from a community property bank account), then the community acquires a pro rata interest in the separate property). If the parties have a premarital agreement that is enforceable, this will affect the division of property as well (See our article on Prenuptial Agreements).
In dissolution proceedings where the marital estate is large, or one party is wealthy, there is typically much fighting over full disclosure of and valuation of assets, and alleged commingling of separate and community property. Investigators and appraisers are hired, and allegations of hidden assets and/or wasteful spending can ensue. Determining the location, scope and nature of property becomes a major investigation and often requires a court decision.
In the end, unless the parties agree in writing, the court will determine what is community and what is separate property, and who gets what. For a thorough review of community property law in California, please see our article on Community Property Debts.
If the parties cannot agree (and often they cannot), the court must also determine what spousal support, if any, is appropriate. A spouse must submit an application to the court for spousal support by filing a motion and order to show cause. While the dissolution or legal separation is pending (from the time the petition for dissolution or separation is filed until final adjudication), the court may order either spouse to pay any amount necessary for the support of the other spouse.
In a judgment of dissolution or legal separation, the court may order a party to pay spousal support to the other in any amount, and for any period of time, that the court deems just and reasonable. The court may also order the paying party to provide security for payment. Wide discretion is vested in the court to determine amount and duration of support, but the court must follow the criteria set forth in California Family Code Section 4320. (Marriage of Wilson (1988) 201 C.A.3d 913; Marriage of Geraci (2006) 144 C.A.4th 1278).
All courts use a guideline formula to calculate support, and must also include the following factors in determining spousal support: marital standard of living, the extent to which each party’s earning capacity will maintain the standard of living, the extent to which the supported party contributed to the supporting party’s attainment of an education, training, and career position, the supporting party’s ability to pay, each party’s need based on the standard of living established during the marriage, each party’s assets (separate and community), the duration of the marriage, each party’s ability to earn a living without interfering with the interests of dependent children, balance of the hardships, and any other factors the court deems just and equitable.
CHILD CUSTODY AND SUPPORT
If the divorce involves children of the marriage, unless the parties agree on custody, visitation and child support arrangement, the parties may engage in lengthy discovery process involving written requests for information and documents, as well as oral questioning under oath and expert testimony, to provide the judge with as much information as possible to determine what is in the best interest of the child with respect to a custody arrangement and visitation rights, restrictions on relocation with the children by one parent, and the like. The court will also order child support based on the parties’ standard of living, each party’s income, and who has primary custody of and care for the children.
The standard utilized by the court is the best interests of the children, but the usual goal is to provide joint custody with each parent remaining involved in the children’s’ lives.
People often ask whether the less financially capable party gets a “free ride” with respect to attorneys’ fees, placing the burden on the party with the money. In California, a court must ensure that each party to the marital action has access to legal representation in order to preserve each party’s rights. To do so, at the request of one party, the court may order one party to pay the other party’s attorney whatever amount is necessary for the attorney’s fees and costs during the proceedings. The court must take into account whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for the legal representation of both. So, in a nutshell, where one party has most of the money, he or she will likely pay the other party’s attorney’s fees and costs.
One client put it well: “Right when I am going through the most difficult emotional turmoil I have ever faced you tell me I now have to confront the legal system and lawyers and CPAs and all the rest. I just want to run away and try not to think about all this. And you tell me I can’t…”
She was right. She can’t just run away. She must face the turmoil or she risks losing much of what she cares about in life. Now is not the time to ignore the challenge.
We explained to her that while much of the dissolution of marriage proceedings can wait until things calm down and need not be confronted immediately, it is still vital to understand that certain steps do need to be handled quickly and that what will occur to children and assets for the next several decades are decided during these proceedings. It is vital to realize that and act accordingly. This legal process may be the most important contact you have with the legal system for your entire life.
If you are facing a divorce, you should consult legal counsel immediately. If you know it is imminent, do not be passive and wait until your spouse files for divorce. You should also meet with a few attorneys to get an understanding of their background, commitment to your case, and how well you interact with them. Going through a divorce may be one of the toughest times in your life, and there is a tendency of the parties to want to simply get it over with and to throw away assets and rights amidst the whirlwind of emotions that arise.
Or, as a wise old attorney once told the writer, “The times in your life when you need the most common sense are the times when you are least likely to have it…when you get married and when you get divorced.”
You must have a team of trustworthy advisors around you from the beginning to ground you and help you achieve a fair and favorable result…to provide that wise and common sense advice. The implications for your life, including your relationship and time with children, retention of your assets, and your standard of living, are too great not to do what is necessary to achieve that result.
And not all divorces need be outright war. Many couples, if represented by calm if firm counsel, and if not working out their anger in court, can achieve fair and efficient division of assets without emotional crisis. That should be your goal with a ready understanding that if that goal is unattainable, you must develop the mental toughness to work your way through the system, bolstered by friends, family and the professionals you select.
This will not be pleasant but it need not be catastrophic. Anger is common in this situation as is feeling of depression, betrayal, disappointment and failure. It is common to feel fear of the future and embarrassment as one explains to friends and family that the marriage is over. And telling children of the need to divorce is often the most difficult task of all.
But a bumper sticker once seen by the author perhaps illustrates why this may be not the worst thing that can happen. “Better to have love and lost than to have spent your whole life with him or her.”
Divorce is an end but it is also a beginning. And handling the process as best as you can will help you make that beginning happen sooner, with less disruption, and with an easier transition into your new life.